The Supreme Court's decision in Wong Kim Ark

In United States v. Wong Kim Ark, 169 U.S. 649 (1898), the Supreme Court comprehensively addressed the subject of birthright citizenship for children of foreign aliens. The court, in a 6-2 decision, held that a child born in the United States (in San Francisco) -- whose Chinese immigrant parents were permanently domiciled in the U.S. but were not U.S. citizens -- was a United States citizen under the Citizenship Clause. The court stated that the "subject to the jurisdiction thereof" provision of the Citizenship Clause must be interpreted in light of the English common law, which provides that a person is within the "allegiance" and entitled to the "protection" of the country where he was born, 169 U.S. at 654-655, and therefore the child of the Chinese immigrant parents was a United States citizen. Id. at 693-694. The court rejected the Government's argument that the immigrant parents, and hence their child, owed their allegiance to the Empire of China and not the United States, and thus the child was not a U.S. citizen for that reason. Id. 

The dissenting opinion, written by Justice Fuller and joined by Justice Harlan, argued that the English common law invoked by the majority opinion does not apply in construing the U.S. Constitution. Rather, nationality is essentially a "political idea" and belongs to the sphere of "public law," and under international law a child's "natural allegiance" is to the country of which his parents are citizens; hence, the citizenship of a child is determined by his parents' citizenship and not his place of birth. 169 U.S. at 707-709. This conclusion, the dissenting opinion argued, was supported by the Supreme Court's decisions in the Elk v. Wilkins, 112 U.S. 84, 101-102 (1884), and Slaughter-House Cases, 83 US. 36, 73 (1871), which had indicated that children of foreign aliens were not U.S. citizens. 169 U.S. at 722-723. The phrase "subject to the jurisdiction thereof" in the Citizenship Clause does not mean "merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance." Id. at 724.

(An interesting sidelight is that Justice Harlan, who joined the dissent in Wong Kim Ark, was the sole dissenter in Plessey v. Ferguson (1896), which upheld the principle of "separate but equal" as applied to racial segregation. Justice Harlan's dissenting opinion in Plessey was later adopted by a unanimous Supreme Court in rejecting the "separate but equal" principle in Brown v. Board of Education (1954).)

The Wong Kim Ark majority opinion appeared to attach significance to the fact that the Chinese immigrant parents were permanently domiciled in the United States. The "question presented," as framed by the court, was whether a child born in the U.S. of immigrant parents who "have a permanent domicile and residence in the United States, and are there carrying on business," is a U.S. citizen under the Citizenship Clause. 169 U.S. at 653 (emphasis added). Answering the question in the affirmative, the court stated that the 14^th Amendment "affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens"; that "[e]very person or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction of the United States"; and that "[i]t can hardly be denied that an alien is completely subject to the political jurisdiction of the country in which he resides." Id. at 693-694 (emphases added). The Court concluded that immigrants born outside of the United States and who are not U.S. citizens are nonetheless "entitled to the protection of and owe allegiance to the United States, so long as they are permitted by the United States to reside here," and thus that their children born in the United States are U.S. citizens.  Id. at 694 (emphasis added).

Thus, Wong Kim Ark squarely held that children born in the United States of foreign alien parents are U.S. citizens, at least where the parents are permanently and lawfully domiciled in the U.S., because such children, like their parents, presumably owe their allegiance to the United States and not a foreign power. But since the decision emphasized, in its statement of the issue and its analysis, that the Chinese parents in the case were permanently and lawfully domiciled in the United States, the decision seems unclear on whether such permanent and lawful domicile is a sine qua non of the child's U.S. citizenship. Because of the ambiguity, Wong Kim Ark is capable of conflicting constructions. While the decision can be construed as holding that all children born in the United States are U.S. citizens except for the expressly-excluded categories, the decision can also be construed as holding that such children of undocumented immigrants are U.S. citizens only if their immigrant parents are permanently and lawfully domiciled in the United States. It is questionable whether immigrants who entered the U.S. in violation of its immigration laws and may be subject to deportation, would be considered as permanent and lawful residents of the United States. Different policy issues of national allegiance may arise depending on whether the immigrants are lawful U.S. residents or instead are subject to deportation. Wong Kim Ark did not address this issue because it did not arise.

Therefore, Wong Kim Ark did not conclusively resolve the issue of birthright citizenship for children of undocumented immigrants. The Supreme Court, depending on how it interprets its precedents, could reject birthright citizenship for such children without overruling any of its precedents. The issue appears to be an unsettled issue of constitutional law.

Although the Supreme Court during the Chief Justice Roberts era has not been loath to overrule the court's precedents, the Roberts Court has apparently overruled precedents at a lesser rate than the previous Warren, Burger and Rehnquist Courts, according to an oft-cited analysis in a New York Times article dated Jan. 29, 2024. According to the analysis, the Warren Court overruled precedents an average of 3.1 times per term, the Burger Court 3.4 times, the Rehnquist Court 2.4 times, and the Roberts Court 2.2 times, which is the lowest of the four courts. This may suggest that the Roberts Court would rather distinguish rather than overrule Wong Kim Ark if the situation arises. 

Post-Wong Kim Ark

Subsequent to the Wong Kim Ark decision, the Supreme Court has not cited the decision as holding that children of undocumented immigrants are U.S. citizens, even though the court has had the opportunity to do so. In Plyler v. Doe, 457 U.S. 202 (1982), the Supreme Court held, in a 5-4 decision, that children of undocumented immigrants have the right under the Equal Protection Clause of the 14th Amendment to be educated under United States laws and to attend U.S. schools. But the court did not declare that such children are U.S. citizens under the Citizenship Clause, nor cite Wong Kim Ark for the view that they are. Instead, the court stated that the Equal Protection Clause allows a child of undocumented immigrants to attend schools, "[w]hatever his status is under the immigration laws." 457 U.S. at 210. The court held that education is so important that everyone in the United States -- even children of undocumented immigrants who may be subject to deportation under U.S. laws -- has a right under the 14^th Amendment to be educated in U.S. schools. Id. at 221-226.

Since Plyler might have strengthened its conclusion by declaring that children of undocumented immigrants are U.S. citizens under Wong Kim Ark -- but, like Arthur Conan Doyle's dog that did not bark, declined to do so -- the court appeared to regard birthright citizenship as an unsettled issue of constitutional law.

An interesting question of constitutional interpretation might arise when the Supreme Court addresses the birthright citizenship issue, namely whether the court might apply the major questions doctrine in resolving the constitutional issue. Under the major questions doctrine, which the court recently expressly adopted, Congress presumptively does not enact laws that have significant political and economic effects unless Congress clearly expresses its intent. E.g., West Virginia v. EPA, 597 U.S. 697 (2022). If the court concludes that the Constitution is not clear on whether birthright citizenship applies to children of undocumented immigrants, the court could, potentially, apply the major questions doctrine in concluding that birthright citizenship does not apply. This is not to suggest that the court should or will do so, but only to note that, if the court does so, it would expand the major questions doctrine, which applies in construing federal statutes, also to apply in construing the Constitution.

Conclusion

When the Supreme Court reviews the constitutionality of the President's executive order denying birthright citizenship for children of undocumented immigrants, the court could plausibly conclude that Wong Kim Ark did not conclusively resolve the constitutional issue, because the issue was not presented and the decision is capable of conflicting constructions. The court would then reach and decide the constitutional issue on its merits, unbound by its precedents and unguided by stare decisis. The argument that the court categorically cannot reject birthright citizenship for such children without overturning Wong Kim Ark is misplaced. The court may be guided by the merits rather than its precedents in navigating the constitutional maze.